Breaking the law for national security’s sake

The proposal to help the government strip people of their citizenship may leave Australia in violation of international law, Sangeetha Pillai writes.

Currently, there is a Bill before federal Parliament which seeks to make it easier for the Minister for Home Affairs to strip Australians of their citizenship on national security grounds.

The Bill has come under fire from the Human Rights Commission, the Law Council, and a number of experts on grounds that it would render people stateless – a breach of international law.

A person is stateless if they are not considered a national or citizen by any country.

Sometimes this happens where particular ethnic, cultural or religious groups within a country are intentionally excluded from the people recognised as nationals, such as the Rohingya in Myanmar.

But statelessness can also occur in other, often unintentional, ways.

A person may be eligible for citizenship in a country, but unable to access registration processes. A person who has citizenship may move abroad or get married, and in doing so lose their citizenship of origin, without acquiring new citizenship. Because citizenship is often passed from one generation to the next, the children of stateless people also face a higher risk of statelessness.

There are also several consequences that all stateless people face.

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Stateless people cannot freely access basic rights that most of us take for granted. A stateless person, for example, will generally lack a passport, and will not be able to travel freely. Typically, they will be unable to access political processes within the country they live in, and may have difficulty accessing public services that are associated with citizenship – welfare, healthcare, and education to name only a few.

The United Nations High Commissioner for Refugees says that statelessness is a problem that is entirely solvable, with adequate political will.

There are two international treaties that seek to address statelessness: the 1954 Convention relating to the Status of Stateless Persons, and the 1961 Convention on the Reduction of Statelessness.

Australia has signed up to both conventions. In doing so, it has committed to take specific steps to reduce statelessness. These include granting citizenship to people born in Australia who would otherwise be stateless, and refraining from depriving a person of their Australian citizenship where this would render them stateless.

To date, Australian citizenship law has been drafted in a way that broadly reflects an intention to uphold these commitments. Despite this, risks of statelessness remain in some circumstances.

To give an example, people born in Australia are eligible for Australian citizenship on grounds of statelessness if they have never held citizenship of a foreign country and are not entitled to foreign citizenship.

While this provides recourse for many Australian-born people who would otherwise be stateless, others remain vulnerable.

For instance, a couple with Syrian citizenship may arrive in Australia fleeing persecution in Syria, and may have a child after arrival. This child may have an entitlement to Syrian citizenship by descent, but lack any safe way of availing Syrian citizenship. That would put them out of the running for Australian citizenship on statelessness grounds, but would leave them effectively stateless, with no practical access to foreign citizenship.

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Conversely, children born to non-citizens in immigration detention with no entitlement to foreign citizenship are entitled to apply for Australian citizenship, but have no practical way in which to do so.

Similar issues arise under Australia’s citizenship-stripping laws. In their current form, these laws allow dual citizens to be stripped of their Australian citizenship on particular national security grounds. In order to be stripped of their Australian citizenship under the current law, a person must hold foreign citizenship.

When the laws were introduced in 2015, a proposal to extend revocation to certain sole Australian citizens was met with a Cabinet revolt, on grounds that it would render people stateless.

But the recent use of these laws against Islamic State recruiter Neil Prakash shows that risks of effective statelessness can nonetheless arise in practice.

Prakash was born in Melbourne to a Fijian father. He was stripped of his citizenship by Home Affairs Minister Peter Dutton after the Department of Home Affairs formed the view that he was a Fijian citizen.

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The problem is, the Department did not consult Fijian authorities before forming this view, and Fiji says Prakash is not, and has never been a citizen.

Prakash, at least for the moment, is effectively stateless. He is currently in Turkey, facing terrorism charges without bail, with no country recognising him as a citizen at present.

As it stands, though his circumstances make it difficult, Prakash could seek judicial review of Dutton’s decision.

He could argue that he was a sole Australia citizen and therefore not eligible for citizenship deprivation. A court would then examine whether or not he actually is a Fijian citizen. If he is not, Dutton’s decision to strip Prakash of his citizenship would be found invalid, and Prakash’s Australian citizenship would be restored.

The Bill currently before Parliament goes a good deal further. If passed, it would allow the Minister to revoke a person’s Australian citizenship if the Minister believes that they hold foreign citizenship, even if this belief ultimately turns out to be incorrect.

In situations like Prakash’s, this would cut off the option of resolution through judicial review, because whether or not the person actually holds dual citizenship would be irrelevant to the validity of a ministerial decision to revoke citizenship.

It would leave people stripped of their citizenship in an ongoing state of uncertainty, and likely in indefinite immigration detention. In doing so, it would place Australia in stark violation of its international law obligations.